Appeal
from the United States District Court for the Northern
District of Texas

Before
STEWART, Chief Judge, and CLEMENT, and SOUTHWICK, Circuit
Judges.

EDITH
BROWN CLEMENT, Circuit Judge:

Plaintiffs,
surviving family members of Ruben Garcia-Villalpando
("Villalpando") and the representative of his
estate (collectively "Romero"), appeal the district
court's grant of a motion to dismiss her claims against
the City of Grapevine ("Grapevine") and Eddie
Salame, Chief of the Grapevine Police Department
("GPD"). Romero further appeals the district
court's subsequent grant of summary judgment in favor of
Officer Robert Clark on

Romero's
remaining excessive force claim under 42 U.S.C. § 1983
on the basis of qualified immunity. For the reasons stated
below, we AFFIRM.

I

On
February 20, 2015, shortly after six PM, Officer Clark
responded to a burglar alarm at a commercial building. In the
driveway adjacent to the back of the building, Clark
encountered an idling four-door sedan. The car began to move
forward and Clark followed for a short period of time before
turning on his emergency lights, signaling for the car to
pull over. The sedan, driven by Villalpando, did not stop,
proceeded to speed up, and ran a stop sign. Clark activated
the full use of his emergency lights and car siren, and began
to follow the vehicle. He informed the police dispatcher that
he was in pursuit and that he believed the sedan's
occupant or occupants were responsible for the "[break]
in" at the commercial building. Villalpando continued to
accelerate and eventually pulled onto the onramp to State
Highway 121, southbound.

Clark
began a high speed chase of the sedan on the highway, which,
at the time, was heavily trafficked. Villalpando wove the
sedan back and forth across the four lanes of traffic and
drove around traffic along the shoulders. Clark asked
dispatch to alert police units in the neighboring city of
Euless. After roughly one-and-a-half minutes of highway
pursuit, Villalpando waved one hand out of his driver's
side window, apparently signaling that he would pull over.
Villalpando proceeded to pull onto the narrow shoulder of a
two-lane exit ramp; Clark pulled over behind
Villalpando's sedan. Clark testified that because he had
followed Villalpando from the scene of a suspected burglary
and engaged in a high speed chase in which Villalpando was
driving recklessly, he treated the stop as a "felony
traffic stop." As Clark explained, "[i]n a felony
traffic stop, the Officer will take additional precautions
when encountering the stopped vehicle and the precautions can
include drawing the Officer's duty weapon, " which
he did before exiting his vehicle.

Clark
immediately instructed Villalpando: "Let me see your
hands. Put your hands out the window." Villalpando
complied and waved both hands out of his driver's side
window. Clark proceeded to repeat himself several times,
instructing Villalpando to "get [his] hands out the
window" and "keep [his] hands out the window."
During this time frame, Clark testified that Villalpando
"repeatedly moved at least one of his hands back out of
view inside the vehicle." The dash cam footage shows
Villalpando moving his right hand back inside his window at
least once. Throughout this time period, several cars passed.

Keeping
his left hand raised and visible, Villalpando opened his
driver's side door. He then raised both of his hands in
the air. Clark immediately ordered Villalpando to "stay
right there . . . stay right there and keep your f-cking
hands out the window." Villalpando appears to move both
of his hands back inside of the car. Clark again repeated his
instructions, yelling "get your hands out, "
"keep your f-cking hands up, " and "dude,
I'm telling you keep your hands right there." He
also radioed the police dispatcher, telling them that
Villalpando was trying to get out of the vehicle and
requesting that his backup "step it up."
Villalpando again briefly moved his right arm back inside his
vehicle, after which Clark screamed "hey! Keep your
f-cking hands where I can see 'em." Again, several
cars drove past the scene developing on the highway shoulder.

Despite
Clark's instructions, Villalpando proceeded to open his
door, exit his car, and turn towards Clark. He initially kept
his arms raised above his head. Clark yelled several more
warnings: "you better stand right there motherf-cker,
" "stay right there, " "keep your hands
where I can see them and stay right there." Though
Clark's exact position at this point is not visible on
the film, a photograph taken by a passing motorist shows
Clark standing no more than a few feet in front of his
driver's side headlight with his gun drawn.

Villalpando's right foot was nearly touching the white
line separating the shoulder from the traffic lanes. Clark
testified that he was "concerned [Villalpando] had a
weapon on his person." Clark radioed dispatch, telling
them that he "got [Villalpando] outta the vehicle, his
hands are up, he's facing me right now. Kept tryin'
to reach for somethin'." Villalpando then lowered
his hands and placed them on his head. Clark told dispatch
that he had Villalpando at gunpoint and that Villalpando was
currently obeying his commands but repeated that he
"kept trying to reach for somethin'" in his
vehicle.

Villalpando
asked Clark "what's your problem?" and
"who you calling motherf-cker?" Clark responded:
"[you] kept reaching for stuff, you're not gonna
listen to me." Villalpando tapped his chest and said
"kill me." Clark assured him "nah, I'm not
gonna kill you, " and again radioed dispatch that backup
"might want to step it up. He's saying kill
me." As several more cars passed in view of the dash
cam-including at least one in the lane closest to the
shoulder-Villalpando turned his back to Clark. He then
dropped his hands briefly to the back of his waistband and
clasped his right wrist with his left hand. Clark again
screamed "hey. Get your f-cking hands up now."
Villalpando turned and raised his hands in the air and told
Clark "I'm gonna walk to you." Clark yelled
"no, stand right there" and "hey. Get your
hands up" as Villalpando again dropped his hands briefly
to his waist. Clark repeated himself: "stand right there
. . . get to the back of the car." Villalpando again
said to Clark "nah. Kill me."

Over
the next several seconds, Villalpando began to walk slowly
towards Clark with his hands on his head. Four times, Clark
told Villalpando to "stand right there, " and he
instructed him twice to "get to the back of the
car" and to "stop . . . stop right there."
Villalpando twice verbally refused to comply, stating
"no . . . no, I'm not." Fumbling slightly with
his hat, Villalpando turned his back to Clark, and continued
moving towards him while spinning again to face him. Clark
continued to yell repeated instructions: ...

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